Social media at work – managing the risks for employers
The escalation in the use of social media has seen businesses seizing the unprecedented opportunity to market their brands directly into the homes of billions of potential consumers and interact instantaneously with customers. There are undoubted commercial benefits of using platforms such as Facebook, Twitter and LinkedIn. Indeed, any organisation failing to take advantage of social media to advertise, network and raise brand profile will not only miss out on a vast source of business, but risks appearing out of touch and behind the times.
Yet alongside such commercial advantages, social media can cause significant difficulties for businesses, particularly in relation to misuse by employees. As social media has grown in popularity, there has been an increase in the number of employment law disputes and an inevitable blurring of the boundaries between work and private life. Can employers discipline employees for posting online comments at home in their own time? Should employees be allowed to express personal views via social media when such opinions may seriously damage the reputation of their employer?
Smith v Trafford Housing Trust (2012)
The recent case of Smith v Trafford Housing Trust discussed the dividing line between work and private life. A Christian employee (Mr Smith) was demoted and his pay reduced for making comments on Facebook opposing gay marriage. Mr Smith’s Facebook page mentioned that he was employed by the Trust and 45 of his work colleagues were his Facebook friends. The Trust argued that disciplinary action was justified because Mr Smith’s comments breached their code of conduct and equal opportunities policy, offended at least one of his colleagues and were likely to bring the Trust into disrepute.
The court, however, found that Mr Smith’s comments did not constitute misconduct. It was clear that Mr Smith used his Facebook page socially to talk about a range of topics, such as football and cars, not to discuss work-related issues. There was therefore no risk that his comments would be mistaken for the views of his employer, or bring it into disrepute. The comments were not judgmental but were expressed moderately and the fact that another employee with different views had taken offense was a necessary price to pay for freedom of speech.
Mr Smith’s demotion therefore breached his contract and amounted to a dismissal. However, Mr Smith did not bring a claim for unfair dismissal (as he did not have the necessary funds before the time limit to bring such a claim expired) and so he was awarded just £98 for breach of contract, being the difference in his salary as a result of the demotion.
This case upholds an employee’s right to privacy and freedom of expression and, importantly, confirms that Facebook is essentially a social and personal medium unless the context suggests otherwise. Had Mr Smith claimed constructive unfair dismissal, it is likely he would have received significantly greater financial compensation, as the perceived risk to the reputation of the Trust could not justify the interference with his private life and the right to express his opinions.
Concerns for Employers
Smith highlights the important question of when and how employers should deal with misconduct via social media. It is possible for employers to discipline and dismiss employees for offensive conduct outside the workplace, provided that the conduct is not private and there is a clear link to the employer. For example, it is well known that employees can be disciplined for any discriminatory or offensive actions during an office Christmas party, even if it takes place after work.
The very nature of social media raises risks for employers, as any comments are inherently public and employees have little control over the final destination of online posts. Their views could potentially be copied and forwarded to any number of unknown recipients, so even restrictive privacy settings may not prevent negative comments about an employer from reaching other colleagues, customers or suppliers.
However, Smith has shown that employers must be wary of intruding too far into the personal lives of employees. Businesses must therefore take action to protect themselves from potential reputational damage which will not disproportionately restrict the rights of employees.
Four ways to protect online reputation
1. Take pre-emptive steps to prevent reputational damage by implementing a social media policy. This will set clear parameters about permitted use of social media at work and show employees that unacceptable online comments, even of a personal nature, can be subject to disciplinary procedures. Train staff on such policies to ensure that they are fully aware of the expected standard of online conduct (whether for business or private purposes) and the implications if they breach the policies.
2. Have clear guidelines for staff using social media as part of the company’s strategic marketing or public relations activities to prevent potentially damaging comments.
3. Follow a fair disciplinary process, just as with “traditional” misconduct. A common sense approach will help to decide whether disciplinary action is required to prevent real risk of reputational damage, or if employees are legitimately letting off steam. Before awarding a disciplinary sanction, consider factors such as the employee’s seniority, the seriousness of the alleged misconduct, the nature of the business and the likely readership of the comments.
4. Keep abreast of changes in the law and be prepared to adapt working practices. As social media constantly evolves, it will inevitably present new challenges, as well as greater opportunities, for businesses.
Syma Spanjers is an Associate at Charles Russell LLP